On 27 July 2022, the German Federal Cabinet adopted the draft bill for an “Act to Improve the Protection of Whistleblowers and Transpose the Directive on the Protection of Persons who Report Breaches of Union Law” (Hinweisgeberschutzgesetz or “Draft Whistleblower Act”). The Draft Whistleblower Act essentially has the same scope and content as the initial draft bill published in April 2022 (see our newsletter of 13 April 2022).
The only change in the Draft Whistleblower Act concerns how anonymous reports are handled. Although still not mandatory, the Draft Whistleblower Act requires that anonymous reports “should” be processed if there is sufficient capacity to do so. This directory requirement reflects best practice for how to deal with anonymous tips, and implements our recommendation to lower inhibitions when it comes to reporting violations. A similar directory requirement will likely allow whistleblowers to file anonymous reports through centralised federal and state reporting channels, which will presumably comply with this requirement. If internal reporting channels do not allow for anonymous reporting, there is a chance that the authorities will be notified immediately – depriving the company of the opportunity to review the matter internally right away and giving the authorities a head start on the investigation.
Another positive aspect is that the Draft Whistleblower Act continues to provide for the possibility of a uniform group-wide reporting channel, making it easier for companies to implement. The revised bill merely adds that central reporting channels may not create any additional hurdles for whistleblowers. The question of whether this group exemption is compatible with the requirements of EU law, which is already being discussed, means we can expect preliminary ruling proceedings before the ECJ in the short term. There are also practical transposition issues concerning how groups with international operations will reconcile the different national requirements.
The adoption of the revised bill removes the last obstacle to national transposition of the EU Whistleblowing Directive. The clock is ticking: The deadline for national Member States to transpose the EU Whistleblowing Directive expired on 17 December 2021. With parliament on summer recess until the end of August, formal adoption is not expected before autumn. The companies that will be affected by the upcoming changes need to take action now. They should also review and take into account the obligation to implement a complaint mechanism from 2023 onwards, as stipulated in the German Supply Chain Act (Lieferkettensorgfaltspflichtengesetz).
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